v (Ruling) (Misc. App. 20/2000) [2000] SLCA 32 (12 October 2000);

Misc/App. 20/2000




Hon.  Mrs.   Justice V.A.D,Wright                                J.A.

Hon.   Mr.     Justice M.S. Tella-Thompson                  J.A.

Hon.   Mr.     Justice E.K. Cowan                                 -J

E.Halloway Esq.. for the                                               Applicants

C.F. Edwards Esq., & A.O.B.Tejan-Cole Esq, for the Respondent.


This is an application by Notice of Motion dated 1st September, 2000 that the Court do grant the Defendant/Applicant leave to Appeal against the Order of the Honourable Mr. Justice A.B. Rashid J. dated 5th July, 2000 and that this Court do grant a Stay of all Proceedings in this: Action.

The Application was supported by the Affidavit of Eke Ahmed Halloway Esq., sworn to on the 31st day of August, 2000.

A.B. Tejan-Cole Esq., for the Respondant raised a Preliminary Objection. He stated that there are 57 days between the 5th July, 2000 when the Ruling was given and the 1st September when the Notice of Motion was filed. He referred to Rule 10(1) and Rule 10(4) of the Court of Appeal Rules P.N. 29 of 1985. And Supreme Court Civ. App. 3 of 1988 Nigerian National Shipping Lines Limited Vs. Abdul Ahmed Trading as Abdul Assiz Enterprises.

E. Halloway Esq., for the Applicant submitted that this application was distinguishable from that of Supreme Court 'Civ. App.31/88 Nig.Net Shipping Lines Limited Vs. Abdul Ahmed. He referred to Order 63(4) of the White Book 1961, and submitted that the 14 days within which to appeal started to run from the ... date of refusal.

In reply A. Tejan-Cole Esq., stated that on the face of the Motion there was no refusal.

Let me examine the provisions of law applicable in this matter. Court of Appeal Rules P.N. 29 of 1985 Rule 64(1)^an;dsvSul'e'lOC't) states


Rule 64(1) States:-

"Except where otherwise provides in these rules or by any other enactment, whore any application may be made either to the Court below or to the Court, it shall be made in the first instance to the Court below, but if the Court below refuses the application, the applicant shall be entitled to have the application determined by the Court.

Rule 10(1) States:-

"Where an Appeal lies by leave only, any person desiris to appeal shall apply to the Court below or to the Court by notice of motion within fourteen clays from the date of the decision against which leave to appeal is sought unless the Court below or the Court enlarges the time. " Rule 10(2) states-

"Any application for leave to appeal or for anlarge-ment of time within which an application for leave to appeal may be made shall be supported by an affidavit setting forth good and sufficient reasons for the application and by proposed grounds of appeal which prima facie show good cause for leave to appeal or enlargement of tine within which to 'apply for such leave should be granted."

The leave sought is against the Order of the Honourable Justice A.B. Rashid dated 5th July, 2000 and the Notice of Motion to the Appeal Court is dated 1st September,2000, some 57 days later.

Rule 10(1) of the Court of Appeal Rules P.N. 29 of 1985 is plain, precise and unabigious and clearly mandatory. The time within which the leave sought to appeal far exceeded 14 days after the decision. Rule 10(4) of the Court of Appeal Rules is of no moment in this application. In our opinion we agree with the Preliminary Objection raised by Counsel for the Respondent/Respondent and we so hold that it was intended by the Rules that leave to appeal should be brought within the prescribed time stated in the Rules as was said in the Case of Collins Vs. Vesting of Paddington 1880 5QB at Page 38.

"When a Judgement has been pronounced and the time


for appeal has elapsed without appael, the successful party has a vested right in the judgement which must be made effectual. And I think that the legislature intended that appeals from judgement should be brought within the prescribed time".

This is the state of the law in our own jurisdiction. See Supreme Court Civ. Appeal 1988 Nigerian National Shipping Lines Vs. Abdul Ahmed Trading Elne as Abdul Assiz Enterprises.

The Preliminary Objection is upheld and the Motion is stuch out with costs assessed at le300.00 to be paid by Appellant/ Appellant to the Respondent/Respondent.

(Sg) Mrs Justice V.A.D.Wright J.A.

I agree..............Hon,. Mr Justice M.E.Tolla- Thompson- J.A.

 I agree......................Hon . Mr. Justice E.G. Cowan J